11

CRIMINAL LAW AND PROCEDURE

R. V, Kelkar*

NUMEROUS DECISIONS have been reported during the year under

survey. Once again the oft-repeated question comes to the mind. Is it all
that necessary to report such a large number of routine type of decisions?
The question is controversial, the answer may sound elusive. Anyway,
it is not quite within the purview of this survey to deal with this question
except by simply raising it. The survey does not make any attempt to
reach each and every decision reported during 1979, ail that it aims at is to
give an appraisal of some important decisions of the Supreme Court and
the High Courts.

I BAIL

Anticipatory bail

In Ramsewak v. State of M.P.1 the High Court of Madhya Pradesh had

to consider an important and interesting question relating to the powers
of the High Court and the court of session to issue directions for grant of
anticipatory bail to persons who have been released on bail during
committal proceedings and not yet been committed in custody to the
court of session for trial, but who apprehend that they may at the time
of committing the case to the court of session be remanded to custody
by the committing magistrate under section 209, Criminal Procedure Code,
1973. In this case, the accused-applicants, apprehending arrest in
connection with a report lodged with the police, applied for and,
consequently, secured anticipatory bail for the alleged offences under
sections 363, 366 and 376, Indian Penal Code, 1860. Thereafter, they were
charge-sheeted for offences under sections 363 and 366 of the Code. Fearing
that they might be committed by the magistrate to the court of session
under custody, they again applied to that court for anticipatory bail.
That application was, however, rejected on the ground that no anticipatory
bail could be granted after the filing of the challan and that the magistrate
has got the power to take the accused in custody at the time of committing
the case to the court of session under section 209, Criminal Procedure
Code. The accused-applicants then moved the High Court for anticipatory

* LL.M., Reader, Faculty of Law, University of Delhi,

i 1979 Cri. LJ. 1485,
Vol. XV] Criminal Law and Procedure 239

bail under sections 438 482 and 483 of the. Code. The Single Bench
of the Madhya Pradesh High Court, considering the divergent views2
on the question referred to above, formulated the following questions
for consideration by a larger Bench:2a

(i) Whether the bail granted under section 438 of the Code is valid
for those offences for which bail has been granted till the
conclusion of the trial; and
(ii) Whether an application for anticipatory bail can lie for
directing the committing Magistrate not to commit the accused
persons under custody while committing the case to the Court
of Sesssion.

On this reference the larger Bench of the High Court considered the
guiding principles of interpretation and construction of statutes including
the historical facts and circumstances relevant for the interpretation of the
statutory provisions, and held that the provisions regarding anticipatory
bail contained in section 438 are not to be read in isolation, but together
with the provisions of section 437 which deal with taking of bail in cases
of non-bailable offences. On this basis and after examining the language
used in sections 437 and 438, the court concluded that these sections
do not contemplate a comprehensive and blanket bail order covering
all sorts of accusations and offences irrespective of their nature and
gravity, and that the anticipatory bail granted under section 438 is valid
only for those offences for which the bail has been granted and for no
others. Further, the court took the view that whenever any person
apprehends that he is likely to be arrested in a non-bailable offence he
may apply for grant of anticipatory bail either before his actual arrest or
during the course of committal proceedings if he apprehends that he is
likely to be committed under custody by the magistrate while committing
the case to the court of session. In addition, the court held that as soon
as a person is enlarged on bail on the directions of anticipatory bail order
under section 438, it would be deemed by implication as if it was granted
under section 437 (1). Consequently, the bail, according to the court
would be effective till the conclusion of the trial unless it is cancelled
under section 437 (5) or under section 439 (2) on grounds known to law,
and filing challan in the court is by itself no such ground to cancel the
bail. In this context the court considered (by way of analogy) the release
on bail under section 167 (2), its earlier decisions3 and also the decision
2
The cases referred to in this connection were B.L. Verma v. State of M.P., 1979
Jab. L.J. 419; Kanhaiyalal Rathiv. State of M.P., 1978 M.P.L J. note 30; Rawat
Dany. State of Rajasthan, 1975 Cri. L.J.691.
2a
Supra note 1 at 1486.
3 Dashrath v. State of M.P., 1978 Jab. LJ. 419; B.L. Verma v. State ofM.P.t supra
note 2 ; Kabilas v. State of M.P., M.Cr. No, 1433 of 1978.
140 Annual Survey of Indian Law [1979
of the Supreme Court in Bashir v. State of Haryana.* It shared the views
expressed therein regarding the continuation of the bail even after the
submission of the challan. The court disagreed with the contrary views
expressed in the decisions in Kanhaiya Lai Rathi v. State of M.P.5 and
Rewat Dan v. State of Rajasthan.5a It also considered section 439 (1) (a)
which gives wide powers to the High Court and the sessions court to grant
bail even in those cases which are pending before a magistrate having
authority to grant bail. In the result the court answered the reference as
given below:5£)

(1) The bail granted under Section 438 (anticipatory bail) will be
valid and operative for those offences only for which the bail
has been granted which would last till the conclusion of the
trial, unless it is cancelled under Section 437 (5) of the Code
if it is necessary to do so ; and
(2) An application for anticipatory bail can lie for directing the
committing magistrate not to commit the accused persons
under custody while committing the case to the court of session.

T he decision in this case is obviously consistent with the recent trend

of liberalising the law of bail in favour of persons seeking bail.
The Code of Criminal Procedure, 1973, does not extend to the State of
Jammu and Kashmir, which continues to have its own Criminal Procedure
Code, the provisions being practically similar to those of the Code of
Criminal Procedure, 1898 (which has now been replaced by the new Code
of 1973). The state Code (like the Code of 1898) does not contain any
specific provision for the grant of anticipatory bail as has been provided
by section 438 of the new Code of 1973. However, the High Court
of Jammu and Kashmir in its decision in Kali Dass v. S.H.O.> Police
Station, Reasi6 read into the provisions of the state Code such a power
of granting anticipatory bail. To begin with, the court considered the
meaning of the term 'bail' and, consequently, held that the person seeking
it must first satisfy the court that he is under some actual physical
restraint. His mere apprehension of such restraint in future would not
be enough. The court, however, considered the expression "appears"
occurring in sections 496 and 497 and held that when an accused person
seeks bail by "appearing" in court, he in fact surrenders himself to its
custody and in that sense the expression "appears" means presents and
surrenders himself before the court. In such a situation, according to the
court, there would be a notional detention of the accused person. The

^ A J R. 1978 S.C. 55.

s Supra note 2.
«o Ibid-
&> Supra note 1 at 1494.
« 1979 Cri.LJ. 345.
Vol. XV] Criminal Law and Procedure 241

court, therefore, concluded that a joint reading of sections 497 and 498
of the state Code would lead to the irresistible conclusion that the court
has the power to admit an accused person to bail, subject to his satisfying
the conditions laid down in the state Code and making out a special
case for being admitted to bail, even in those cases where he "appears"
and surrenders to the custody of the court in anticipation of his arrest.
In that event the court may grant bail to the person before he has been
actually arrested by the police and in anticipation of such arrest. Thus,
though the state Code has no specific provision for granting anticipatory
bail as in section 438 of the Code of 1973, the court in effect, by a
liberal and innovative interpretation, read into it such a power to grant
anticipatory bail,
The decision in the Kali Dass case is one more instance in the recent
trend of liberalisation of bail law through judicial process. It would be
particularly useful and welcome when legislative provisions regarding
anticipatory bail {i.e., section 438) are being withdrawn in a state like
U.P. 7 The decision in this case is noteworthy in another respect also.
The High Court of Jammu and Kashmir has disagreed with the view
taken by the Full Bench of the High Court of Punjab and Haryana in
Gurbaksh Singh v. State of Punjab,8 namely, that for proper and effective
investigation, interrogation of an accused in custody is always essential
and that this fact should be taken into account whih granting anticipatory
bail under section 438. While disagreeing with this view the High Court
of Jammu and Kashmir felt that the proposition had been very broadly
stated and could not have any universal application.
In Amiya Kumar v. State W.B.Q the Calcutta High Court had to consider
the question whether a person whose application for anticipatory bail
under section 438, Criminal Procedure Code has been rejected by the
court of session, can again file an application for anticipatory bail before
the High Court. The court thought that the simple language in section
438 (1) clearly and unambiguously indicated that the petitioner for
anticipatory bail may apply to either of the courts, namely the High
Court or the sessions court. The word " o r " in section 438 (I) has been
used in the alternative or exclusive sense. According to the court this
provision for alternative choice is quite consistent with the object of the
Code to avoid delay in the disposal of criminal cases and to avoid the
abuse of the processes of the court and also wastage of the court's time.
It also compared the language of section 438 (1) with that used in
section 439, or one used in sections 397, 398 and 399 of the Code and
held that the second petition for anticipatory bail before the High Court
is not maintainable after the rejection of the first one by the court of
session.
7
See s. 9 of the U.P. Criminal Procedure Code (Amendment) Act, 1976T
s 1978 Cri. L.J. 20.
P 1979 Cri. L.J. 288.
242 Annual Survey of Indian Law [1979

It is respectfully submitted that the decision is not quite in tune with

the trend of liberalising the bail law. A decision granting or rejecting
an application for bail or anticipatory bail is not appealable, nor is a
revision in respect of such a decision possible as the same is only an
interlocutory order. The decision of the Calcutta High Court would,
therefore, mean that the aggrieved petitioner would have no remedy on
the rejection of his petition by the sessions court. It would also lead to
another incongruous legal consequence. Section 438 gives concurrent
powers to the High Court and the court of session; but as in other
analogous provisions in the Code, it is normally to be presumed that the
latter court would be first approached for grant of anticipatory bail
unless an adequate case for not approaching the said court has been made
out. This legal position was fully accepted and relied upon by the High
Court of Punjab and Haryana in Chajju Ram v. State of Haryana10 and
as the petitioners in that case had not shown as to why they had chosen
to bypass the sessions court whilst approaching the High Court directly,
the court without passing any orders on the petition directed the petitioners
first to approach the court of session for grant of anticipatory bail.
If both the decisions in the Chajju Ram and Amiya Kumar cases are
to be accepted as good law, it would mean that barring those very rare
cases where there are reasons for not approaching the sessions court first,
no case for anticipatory bail can ever come before the High Court. This
appears to be inconsistent with the language of section 438 and the spirit
of the bail provisions generally. To that extent, the narrow interpretation
of section 438 (1) as given in the Amiya Kumar case does not seem to be
a sound and correct interpretation of section 438 (1).

Requirement of notice before forfeiture of surety bonds

In Mahmood Hasan v. State11 M and W were sureties for a sum of

Rs. 3,000 each for the accused, J. On the day fixed for judgment J
remained absent. The next day the surety bonds were forfeited and it
was ordered that the sureties be called upon to produce the accused and
to pay the penalty amount. On the date fixed the accused was present
in the court and the sureties moved an application that the order forfeiting
the bond be cancelled. The court, however, ordered that each of the
sureties (appellants) should pay Rs. 500 within 15 days failing which they
would be liable to pay the whole penalty. Against this order the appellant
sureties came before the High Court of Allahabad in appeal. The court
noted from the record that before forfeiting the surety bonds the lower
court had not given any notice to the appellants to show cause as to why
the surety bonds be not forfeited. The court took the view that before any

io 1978Cri.L.J. 608.
U 1979 Cri. L.J. 1439.
Vol. XV] Criminal Law and Procedure 243

adverse order is passed the person concerned should be given an opportunity

of being heard. This is the obvious requirement of the rule of natural
justice. As no such opportunity was given to the appellants the court
while allowing the appeal held that the appellant could not be called upon
to pay the sum of Rs, 500 as penalty,
Grant of bail and section 167 (2)

In Pandi v. State12 the petitioners, alleged to have committed murder,

filed an application on 9.10.1979 before the judicial magistrate praying for
bail under section 167(2) proviso (a), as the petitioners were in custody
for over a period of 90 days and the charge-sheet had not been submitted,
l^he magistrate ordered notice to the police and fixed the hearing on the
10th October, 1979. But, in the meanwhile, on the 9th itself the charge-sheet
was filed. On the 10th of October, the magistrate dismissed the application
for bail as there was no reason then to invoke the provision of sections
167 (2). Against that order the petitioners came before the Madras High
Court invoking its inherent jurisdiction under section 482.
The court relied on the observations of the Division Bench of the
Gujarat High Court in Umed Singh v. State13 and held that the moment
the charge-sheet is filed the proviso to section 167 (2) ceased to operate. It
also held that there could be no illegality or irregularity in the magistrate
ordering notice in an application filed under section 167 (2)
though such a notice may not be contemplated by the court. In the
absence of any provision in section 167 (2) which would entitle the
petitioners to bail merely on the ground that their detention at the stage
of section 167, Criminal Procedure Code was illegal, the court held that
the magistrate was correct in dismissing the application. In Nethala
Vinod Prabhu v. State of A.P.u the High Court of Andhra Pradesh had to
consider a similar question. The court took the view that the detention
of an accused during investigation beyond the period prescribed by section
167 (2) proviso (a) is no doubt illegal and unlawful, but once a charge-
sheet is filed after completion of the investigation fresh legal position
comes into play as the remand comes to an end, and consequently, the
provisions of section 167 (2) would cease to operate. In such a case the
court would have to consider the test laid down in section 437 for granting
or refusing bail. The court, therefore, held that the accused was not
entitled to claim as of right that he was entitled to be released on bail
because of his illegal detention caused by non-compliance of the
provisions of section 167 (2), proviso (a).
The above two decisions are somewhat disturbing and appear to be
discordant with the spirit of section 167 (2), proviso (a). If the

12 1979 Cri. L.J. 1503.

is AJ.R. 1977 Guj. 11.
J* 1979 Cri. LJ. N.O.C 90.
244 Annual Survey of Indian Law [1979

investigations are not completed within the statutory time limits of ninety
days and sixty days mentioned in section 167 (2), a precious right to be
released on bail vests in the accused person provided he applies for bail and
offers to furnish security to the satisfaction of the magistrate. Should he be
deprived of this right simply because the magistrate for any reason, good
or bad (or for that matter without any reason), kept the bail application
pending and before the formal bail order is passed the challan or charge-
sheet is filed by the police?
Though the above question has not been authoritatively answered by
the Supreme Court a more humane and progressive approach to the
problems of under-trial prisoners in general and to the interpretation of
section 167 (2) proviso (a) in particular is clearly noticeable in the famous
and well known decision of the Supreme Court in Hussainara Khatoon v.
State of Bihar.15 While deciding this case the Supreme Court laid down
the following as a guiding rule:

When an undertrial prisoner is produced before a Magistrate and

he has been in detention for 90 days or 60 days, as the case may be,
the Magistrate must, before making an order of further remand
to judicial custody, point out to the undertrial prisoner that he is
entitled to be released on bail.16

The court also made it almost a mandatory rule that the state
government must also provide at its cost a lawyer to the under-trial
prisoner with a view to enabling him to apply for bail in the exercise of
his right under proviso (a) to section 167 (2) and that the magistrate must
take care to see that the right of the undertrial prisoner to the assistance
of the lawyer provided at state cost is secured to him.
Unsatisfactory bail system

In Hussainara Khatoon v. State of Bihar17 a petition for a writ of

habeas corpus was filed in the Supreme Court on the basis of the
newspaper reports appearing in the issues of the Indian Express dated 8th
and 9th January, 1979. Although sufficient notice and opportunity was
given to the State of Bihar to meet the allegations made in the petition,
no one appeared on its behalf. The court, therefore, proceeded on the
basis that the allegations contained in the above said newspaper reports
were correct. The reports indicated a shocking state of affairs in regard
to administration of justice in that state. According to these reports
an alarmingly large number of men and women were behind prison bars
for years awaiting trial in courts of law. The offences with which some
15
1979 Cri. L J. 1052.
16
Id. at 1054. (Emphasis added\
47 }979 Cri. L J . 1036,
Vol. XV] Criminal Law and Procedure 245

of them were charged were trivial which even if proved would not warrant
punishment for more than a few months, perhaps, for a year or two.
While dealing with the cases of these unfortunate under-trial prisoners
in the habeas corpus petition the court observed:
It is a travesty of justice that many poor accused, 'little Indians,
are forced into long cellular servitude for little offences' because the
bail procedure is beyond their meagre means and trials don't
commence and even if they do, they never conclude.17"
Bhagwati J. (for himself and on behalf of Kaushal J.) expressed the
following view:
[0]ne reason why our legal and judicial system continually
denies justice to the poor by keeping them for long years in
pretrial detention is our highly unsatisfactory bail system.
It suffers from a property oriented approach which seems to
proceed on the erroneous assumption that risk of monetary loss is
the only deterrent against fleeing from justice. The Code of
Criminal Procedure even after its re-enactment, continues to adopt
the same antiquated approach . . . and where an accused is to be
released on his personal bond, it insists that the bond should
contain a monetary obligation requiring the accused to pay a sum
of money in case he fails to appear at the trial . . . . This system of
bails operates very harshly against the poor . . . . The poor find it
difficult to furnish bail even without sureties because very often the
amount of bail fixed by the courts is so unrealistically excessive that
in a majority of cases the poor are unable to satisfy the police or the
Magistrate about their solvency for the amount of the bail and
where the bail is with sureties, as is usually the case, it becomes an
almost impossible task for the poor to find persons sufficiently
solvent to stand as sureties. The result is that either they are
fleeced by the police and revenue officials or by touts and
professional sureties and sometimes they have even to incur debts
for securing their release . . . . 18

The learned judge further suggested :

Parliament would do well to consider whether it would not be

more consonant with the ethos of our Constitution that instead of
risk of financial loss, other considerations such as family ties, roots
in the community, job security, membership of stable organisations
etc., should be the determinative factors in grant of bail and the
accused should in appropriate cases be released on his personal

i7a id. at 1037.

w Id. at 1038.
246 Annual Survey of Indian Law (1979

bond without monetary obligation. Of course it may be necessary

in such a case to provide by an amendment of the penal law that if
the accused wilfully fails to appear in compliance with the promise
contained in his personal bond, he shall be liable to penal action.19

The court expressed the opinion that if the system of bail even under
the existing law is administered in the manner indicated in the judgment
it would go a long way towards relieving hardships of the poor and help
them to secure pre-trial release from incarceration. For this reason it
directed that the under-trial prisoners whose names were given in
newspaper reports should be released forthwith on their personal bonds
without any monetary obligation. This exceptional measure was taken
because of the reason that all these persons had been in jails without trial
for several years and in some cases for offences for which the punishment
would in all probability be less than the period of their detention,
Pathak J. in a concurring but separate opinion expressed the view that
an explicit provision in the Code of Criminal Procedure should be enacted
enabling the release in appropriate cases of an under-trial prisoner on
his bond without sureties and monetary obligations. According to him
such a clear provision was urgently needed.
II INVESTIGATION

Precedural lapses affecting F.I.R. authenticity

In Mahabir Singh v. State20 the convictions and sentences for murder

were challenged by the two appellants in their appeal before the High
Court of Delhi. The court after scrutiny of the evidence of the
prosecution witnesses coupled with the attending circumstances of the crime,
felt that the evidence was unworthy of belief raising grave doubts about
the authenticity of the prosecution version qua the participation of the
appellants in the crime. In addition, it seriously considered the argument
advanced by the appellants' counsel that there had been a flagrant
disregard of the provisions of sections 154 and 157 of the Criminal
Procedure Cods and of the Police Rules beause of their persistent non-
compliance. The court observed:

Since similar arguments are being advanced before us in several

cases, we would like to deal with them at some length . . . . 21

The court then discussed in detail the real import of the provisions of
sections 154 and 157 of the Code and of the relevant Police Rules and
concluded as follows:

i» Id- at 1039.
20 1979 Cri. L J . 1159.
21 Id. at 1163. (Emphasis added).
Vol. XVj Criminal Law and Procedure 247

No doubt the non-compliance of sections 154 and 157 of the Code or

that of the Rules does not constitute a ground to throw away a pro-
secution case but it does emerge as a factor to be seriously reckoned
with while appreciating the entire evidence. Its non-observance is
bound to cast some shadow on the case, obviously to its detriment,
because of the adverse inference. Its degree depends upon the facts
of a particular case.22

The court thought it necessary to highlight the procedural requirements

of sections 154 and 157 as their non-compliance had vitally affected the
decision of this case. Ultimately, it accepted the appeal and set aside the
convictions and sentences of the appellants.

In Somappa v. State of Mysore2* the Supreme Court once again

emphasised that a statement recorded by the police in respect of a
cognizable offence can be considered and used as F.I.R. if the same is
recorded before the commencement of the investigation, but not otherwise.
Simply because the statement was the first one recorded by the police in
point of time, would not make it F.I.R. if such a statement was recorded
after commencement of the investigation. In this case, on receipt of
information at 8 p.m. regarding the occurrence of the crime of murder,
the police officer immediately went to the scene, saw the injured, sent him
to the hospital, arrested the accused and seized his clothes. Thereafter,
at about 9 p.m., i.e., nearly one hour after the commencement of the
investigation, the statement of P.W.5 was recorded at the police sation
as F.I.R. Pointing out the meticulous manner in which the particulars of
the accused and the deceased were given in the statement, it was submitted
by the defence that the entire document was suspicious and that it must
have been prepared after considerable deliberation. Accepting this plea,
the court held that the recorded statement of P.W.5 could not be
considered as F.I.R. and that it was just a statement of a witness recorded
by the police during investigation.

Section 167, Criminal Procedure Code

In State of Tamil Nadu v. V. K. Naidu2* a question arose whether the

special judge under the Criminal Law (Amendment) Act, 1952, can exercise
the power conferred on a magistrate under section 167 of the Code to
authorise detention of the accused in the custody of the police. The
Supreme Court on consideration of the relevant provisions of the Criminal
Law (Amendment) Act and those of the Code came to the conclusion that
the special judge would be a magistrate empowered to try a case under

22 id. at 1164.
23 1979 Cri. L.J. 1358.
24 1979 Cri. L J. 1069.
248 Annual Survey of Indian Law [197$
section 167 of the Code. According to the court the special judge may
exercise all the powers that are conferred upon a magistrate having
jurisdiction to try the case.
No summons to accused to produce incriminatory documents

In Vinayak v. Vikram2* the petitioner-complainant had filed a private

complaint against the respondents-accused for alleged offences of criminal
breach of trust and cheating, and had applied to the trial court for the
issue of summons to the accused persons calling upon them to produce
certain (incriminatory) documents. That application was rejected by the
trial court on the ground that in view of the Supreme Court decision in
State of Gujarat v. Shyamlal Mohanlal2^ the court had no authority or
jurisdiction to issue any such summons against the accused person as that
would be violative of the constitutional guarantee against self-incrimination
contained in article 20 (3) of the Constitution. This order of the trial
court was challenged by the petitioner-complainant before the Bombay
High Court on the ground that the Supreme Court decision in the
Shyamlal case37 was not binding as in that case the Supreme Court had
not considered the view taken by the larger Bench in its earlier decision in
State of Bombay v. Kathi Kalu Oghad.2S While rejecting this plea and the
petition, the Bombay High Court observed that the question whether a
summons can be issued to the accused to produce incriminatory documents
was directly before the Supreme Court in the Shyamlal case29 and was
decided in the negative, but that question was not directly posed before
the same court in the Kathi Kalu Oghad case.30 Moreover, the High Court
felt that it was not possible to ignore the later decision of the Supreme
Court which was directly on the point.
A similar view has been taken by the Patna High Court in Sheonandan
Prasad v. State of Bihar*1 where it held that the words "the person" in
section 91, Criminal Procedure Code do not include an accused and that he
cannot be compelled to disclose documents which are incriminatory and
based on his knowlege.

Search warrant

In Ramakrishnan v. V. S. Kutti Pillai32 the petitioner-complainant had

filed a complaint against the respondents-accused for the alleged offences
of cheating, criminal breach of trust, etc. A search warrant was then

25 1979 Cri. L J . 71.

26 A J . R . 1965 S.C. 1251.
27 Ibid.
28 A.I.R, 1961 S.C. 1808.
29 Supra note 26.
30
Supra note 28.
3i 1979 Cri. L.J N . O . C . 26 (Pat.).
32 1979 Cri. L J . 177.
Vol. XV] Criminal Law and Procedure 249

issued under section 93, Criminal Procedure Code for searching the
premises under the control of the respondents-accused. Pursuant to the
warrant the documents were seized and produced before the court. The
respondents, thereupon, moved the court for the recall of the search
warrant and for return of the documents. The contention of the respon-
dents was that the issue of search warrant was illegal and without
jurisdiction in view of article 20 (3) of the Constitution. The trial court
upholding the contention, ordered return of documents, which was challen-
ged by the petitioner-complainant in the present case before the Kerala
High Court. The court after reviewing in detail the earlier Supreme Court 33
and High Court decisions34 in the light of article 20 (3) of the Constitution
and sections 93 and 91 of the Criminal Procedure Code reached the conclu-
sion that the provisions relating to search contained in section 93 (1) of
the Code are not hit by article 20 (3) of the Constitution. Accordingly, the
court held that the order of the trial court declaring the search as without
jurisdiction was unsustainable and the same was set aside.
The decision is important. It has attempted to make the search law
uniformly operative in respect of the issuing of search warrants under any
of the three clauses of section 93 (1). The restrictive meaning given to
clause (a) of section 93 (1) in some decisions is mainly because of the
essential requirement of that clause that the court issuing the search
warrant must have "reason to believe that a person to whom a summons
or order under s. 91... has been, or might be addressed, will not or
would not produce the document or thing as required by such summons
or requisition." If, because of the constitutional guarantee against self-
incrimination given in article 20 (3) the words "the person" in section 91
are not to include the accused person; and the accused person is not to be
summoned or ordered to produce documents in his possession as has been
held in the Vinayak35 and Shyamlal MohanlaP* cases, then it automati-
cally follows that a search warrant cannot be issued under section 93 (1)
(a) [though it would be permissible under clauses (b) and (c) of section 93
(1)] for the documents known to be in the possession of the accused. This
is not because issuing of the search warrant in respect of documents and
things in possession of the accused is in itself violative of article 20 (3) of
the Constitution, but because of the restrictive wording of section 93 (1)
(a) linking it up to section 91. The better course would be to de-link

33 MP. Sharma v. Satish Chandra, 1954 Cri. L.J. 865; State of Gujarat v. Shyamalal
Mohanlal, (1965) 2 Cri. L.J. 256; Parmeshwari Devi v. State, 1977 Cri. L.J. 245.
3* Satya Kinkar v. Nikhil Chandra, AJ.R. 1951 Cal 101 (F.B.); Swarnalingam v. Asst.
Labour Inspector, AJ.R. 1956 Mad. 165; Gurpurb Singh v. Autar Singh, 1960 Cri. LJ.
470 (J.& K.); Ram Rakha v. Sat Paul, 1973 Cri. L.J. 93 (J. & K.); Shiv Dayal v. Sohan
LaU AJ.R. 1970 P. & H. 468; Subayya Gounder v. Bhoopala, AJ.R. 1959
Mad. 396.
35
Supra note 25.
ae Supra note 26.
250 Annual Survey of Indian Law [1979

section 93 (1) (a) from 91 and to reformulate section 93 (1) in such a way
as to give adequate powers to courts to issue search warrants even in
respect of documents and things known to be in possession of the accused
person. In this area a suitable legislative change would be more welcome
than the ad hoc and piecemeal solutions provided by the judicial
process.

Medical examination of arrested accused

An interesting question as to the interpretation of section 53 of the

Criminal Proceedure Code came up before the Bombay High Court in
State of Maharashtra v. Dnyanoba?1 According to section 53, a police
officer not below the rank of a sub-inspector can request a registered
medical practitioner to medically examine an arrested person under
certain circumstances, and if he is unwilling to undergo it, the section
empowers the medical practitioner and his assistants to use such force as
is reasonably necessary for making the medical examination.
There were two cases in which the accused persons were charged with
offences of rape punishable under section 376 of the Indian Penal Code. In
both, the concerned police sub-inspector approached the judicial magistrates
for an order directing the accused to submit themselves to the medical
officer for obtaining the blood of the accused for analysis. In both, the
concerned magistrates directed the accused to present themselves before
the registered medical officer and allow the officer to collect their blood
for analysis. Against the orders of the magistrates the accused persons
went in revision to the court of session challenging the legality of the ordeis
passed by the magistrates. The additional sessions judge in both accepted
the stand taken by the accused persons and held that the orders passed by
the magistrates in respect of their medical examination were illegal and
the same were set aside. Against the decision of the additional sessions
judge, two revision petitions were filed by the state before the High Court
of Bombay. These petitions were disposed of by a common judgment as
they involved a common point of law. The basic question in both was
whether there was any express legal provision empowering the magistrate
to compel the accused to submit to the medical officer for the extraction of
blood. The court referred to article 21 of the Constitution which provides
that no person shall be deprived of his life or personal liberty except
according to the procedure established by law. According to the High
Court if extraction of blood is not permitted or is not provided by law,
then the blood of any citizen cannot be extracted; if such extraction is
permitted in accordance with particular procedure alone, then that procedure
alone, and none other, can be followed; if the extraction of blood by a

37 1979 Cri. L J . 277 (Bom.).

Vol. XV] Criminal Law and Procedure 251

particular person is permitted by any law, then that person alone can
extract the blood and none other. The court had no difficulty in holding
that the magistrates who passed the impugned orders had no authority
under the provisions of section 53 to compel the accused to allow the
medical practitioner to extract blood from their person. It, therefore,
held that the orders passed by the magistrates were patently illegal and
without jurisdiction and were rightly set aside by the additional sessions
judge.
Further, the court raised two questions regarding the scope and ambit
of section 53, Criminal Procedure Code, viz. :

(i) whether the provisions of section 53 can be invoked sometime

after the person has been arrested and has been released on bail; and
(/*/) whether section 53 can compel a person arrested to allow a
medical officer to extract his blood though it may allow the medical
practitioner to otherwise medically examine him.

The court doubted whether this section could ever include the extraction
of blood of a person arrested, but felt it unnecessary to decide these two
questions on the facts of the present case.
It is surprising that while the law empowers a police officer of the rank
of a sub-inspector to make a decision compelling the arrested accused to
undergo medical examination, it does not permit a judicial officer to make
such a decision. A suitable provision should be inserted in the Criminal
Procedure Code empowering the magistrates to direct medical examination
of the accused under the circumstances mentioned in section 53 of the
Code.

Ill LEGAL AID

Legal aid to under-trial prisoners

In Hussainara Khatoon v. State of Bihar3* the Supreme Court took

notice of the fact that several under-trial prisoners charged with bailable
offences continue to remain detained in jail as no bail application has
been made on their behalf or being too poor they are unable to furnish
bail. Under-trial prisoners who are produced before the magistrates are
often unaware of their rights to be released on bail, and being indigent
they are unable to engage a lawyer who would apprise them of their
rights and secure their release on bail. In this context the court observed:

We do not think it is possible to reach the benefits of the legal

process to the poor, to protect them against injustice and to secure

38 1979 Cri. L.J. 1045 (S.C.)

252 Annual Survey of Indian Law [1979
to them their constitutional and statutory rights unless there is a
nationwide legal service programme to provide free legal services to
them.39

The court then considered article 21 of the Constitution as interpreted

in its decision in Maneka Gandhi v. Union of India,40 approvingly referred to
the obseivations in its decision in Madhav Hoskot v. State of Maharashtra,41
discussed the import of the newly added directive principle contained in
article 39-A of the Constitution in respect of equal justice and free legal
aid, and concluded as follows:

The right to free legal services is, therefore, clearly an essential

ingredient of 'reasonable, fair and just' procedure for a person
accused of an offence and it must be held implicit in the guarantee
of Article 21. This is a constitutional right of every accused person
who is unable to engage a lawyer and secure legal services on
account of reasons such as poverty, indigence or incommunicado
situation and the State is under a mandate to provide a lawyer to an
accused person if the circumstances of the case and the needs of
justice so required, provided of course the accused person does not
object to the provision of such lawyer.42
The court, accordingly, directed in the present case that on the next
remand dates when the under-trial prisoners charged with bailable offences
are produced before the magistrates, the state government should provide
them a lawyer at its own cost for the purpose of making an application
for bail, provided that no objection is raised to such lawyer on behalf
of such under-trial prisoners. It also directed the state government of
Bihar to report to the High Court of Patna its compliance with the above
direction within a period of six weeks from the date of the order.

Legal aid is a constitutional mandate

During the hearing of the same Hussainara Khatoon case43 on a later

date the Supreme Court once again emphasised its earlier observations
in respect of the constitutional obligation of the state to provide legal
aid, as it found that barring a few, many of the state governments were
not alive to their constitutional responsibility in the matter of provision
of free legal services in the field of administration of criminal justice.
The court virtually struck a note of warning to erring state governments
when it observed:
89 Id. at 1048,
40 A.I.R. 1978 S.C. 597.
41 AJ.R. 1978 S.C. 1548.
42 Supra note 38 at 1049,
43 Supra note 15.
 Vol. XV] Criminal Law and Procedure 253

Let it not be forgotten that if law is not only to speak justice but
also deliver justice, legal aid is an absolute imperative....We hope
and trust that every State Government will take prompt steps to
carry out its constitutional obligation to provide free legal services
to every accused person who is in peril of losing his liberty and
who is unable to defend himself through a lawyer by reason of his
poverty or indigence in cases where the needs of justice so require.
If free legal services are not provided to such an accused, the trial
itself may run the risk of being vitiated as contravening Article 21
and we have no doubt that every State Government would try to
avoid such a possible eventuality.44

Power to summon defence witnesses at state expense

In a warrant case trial if the accused after entering upon his defence
applies to the magistrate to issue any process for compelling the attendance
of any witness, the magistrate, according to section 243 (2) shall issue
such process unless in his opinion the application has been made for
the purpose of vexation and delay or for defeating the ends of justice.
It has been further provided by section 243 (3) that the magistrate may
before summoning any such witness require that the reasonable expenses
of the witness attending the court be deposited in court. However, in
Venkateswara Rao v. State A.C.BUa the High Court of Andhra Pradesh
considered it pertinent to note the words "may require" used in section
243 (3) and held that the requirement of depositing the expenses of the
defence witness could be insisted upon only in cases where the accused
has the capacity or the means to pay the expenses.

IV TRIAL PROCEDURES

Proceedings tofoeexpeditious

In Hussainara Khatoon v. State of Bihar** the Supreme Court found

from the lists of under-trial prisoners filed on behalf of the respondent
state that several prisoners had been in jail for periods longer than the
maximum term for which they could have been sentenced if convicted.
The court felt that this shocking state of affairs "exposes the callousness
of our legal and judicial system which can remain unmoved by such
enormous misery and suffering resulting from totally unjustified deprivation
of personal liberty". 46 The continued detention of such under-trial

44 id. at 1055-1056.
<4a 1979 Cri. L.J. 255.
45 Supra note 38.
46 # , at 1047.
254 Annual Survey of Indian Law [1979
prisoners being totally unjustified, it directed that these prisoners should
be released forthwith as "continuance of their detention is clearly
illegal and in violation of their fundamental right under Article 21 of the
constitution."47 In this context the court thought of a new activist role
for itself. It observed:

The State cannot avoid its constitutional obligation to provide

speedy trial to the accused by pleading financial or administrative
inability. The State is under a constitutional mandate to ensure
speedy trial and whatever is necessary for this purpose has to be
done by the State. It is also the constitutional obligation of this
Court, as the guardian of the fundamental rights of the people,
as a sentinel on the qui vive, to enforce the fundamental right of
the accused to speedy trial by issuing the necessary directions to
the State which may include taking positive action, such as
augmenting and strengthening the investigative machinery, setting
up new courts, building new court houses, providing more staff and
equipment to the courts, appointment of additional judges and
other measures calculated to ensure speedy trial.48

In order to enable the court to discharge this constitutional obligation,

it rightly directed the respondent-state to furnish within prescribed time
limits the requisite specified information having bearing on the problem
of under-trials in not getting speedy trials. After obtaining the necessary
information what directions it would give to the state for positive action
for ensuring speedy trials, would be highly important and interesting.
The various High Courts are also under a constitutional obligation to
protect the fundamental rights of the people. Would the High Courts
play this activist role in issuing positive directions to state governments
for ensuring speedy trials or for enforcement of fundamental rights
generally? Should they do so? If the state governments and their officials
arc not able to comply with such directions, what would be the legal
consequences? Would the erring officials be hauled up for contempt of
court or would there be some other sanction against them?
As in the Hussainara Khatoon case the Supreme Court had to deal
with the problems of under-trial prisoners in NimeonSangma v. Government
of Meghalaya.^ The court had in its earlier order directed the state
to file a statement containing particulars of the under-trial prisoners. From
the statements filed by the state it found a large number of cases where
detention for considerable periods without the trial having even commenced
was being suffered by several persons. The court observed:

47 id. at 1048.
48 id. at 1051.
49 197? Cri. L.L 941,
Vol. XV] Criminal Law and Procedure 255

Criminal justice breaks down at a point when expeditious trial is

not attempted while the affected parties are languishing in jail. The
Criminal Procedure Code in Ss. 167, 209 and 309 has emphasised the
importance of expeditious disposal of cases including investigations
and trials. It is unfortunate, indeed pathetic, that there should
have been such considerable delay in investigations by the police
in utter disregard of the fact that a citizen has been deprived of
his freedom on the ground that he is accused of an offence. We
do not approve of this course and breach of the rule of law and
express our strong displeasure at this chaotic state of affairs verging
on wholesale breach of human rights guaranteed under the
Constitution especially under Art. 21 as interpreted by this Court. 50

The court did not pass any orders as it preferred to wait until more
particulars were brought to its notice. At that stage it considered it
sufficient to direct the state to consent to release all persons who have
been in custody for over six months and whose trials had not commenced
or against whom charge-sheets had not been laid. The court, however,
made one exception in cases where sections 302 and 305, Indian Penal
Code were involved.

Doctrine of prospective overruling

In the decision Rameshwar Chotte Lai v. Union of India,51 the Division

Bench of the Delhi High Court had held that no company could be
indicted and punished under the Prevention of Food Adulteration Act,
1954, (hereafter referred to as "Act" in the discussion under this head) for
an offence for which the punishment of imprisonment was mandatory even
though the punishment was also to include mandatory fine.
Subsequently, in 1972, in a case under the same Act, the single Bench of
the Delhi High Court, following the law as laid down in the above decision
in Rameshwar Chotte Lai case, confirmed the order of discharge passed by
the lower courts in favour of the accused companies, namely Delhi
Bottling Co. Pvt. Ltd., New Delhi and Parle Bottling Co. Pvt. Ltd.,
Bombay, on the ground that since the alleged offence was compulsorily
punishable with imprisonment and fine the accused companies could not
be prosecuted.
Thereafter, in 1975, in the decision in Municipal Corporation of Delhi
v. / . B. Bottling Co. Pvt. Ltd}2 the Full Bench of the Delhi High Court
reconsidered the view expressed in the Rameshwar Chotte Lai case and
held that a company does not enjoy immunity from prosecution under
the Act for an offence punishable with mandatory punishment of both

f* Ibid.
P1 I.L.R. (1969) Del. 1196.
62 {§75 Cri, L.J. 1148,
256 Annual Survey of Indian Law 11979

imprisonment and fine and that in such a case the guilty company must be
punished with the mandatory fine though the mandatory sentence of
imprisonment ex facie was not passable against the company.
After the above Full Bench decision, the respondent, Delhi Municipal
Corporation, in Delhi Bottling Co. v. Delhi Municipality™ filed a fresh
complaint under the Act on the same facts and allegations against the two
companies which were discharged earlier by the High Court following the
piecedent as laid down in the Rameshwar Chotte Lai case.54 The petitioner
company challenged the validity and competency of the said complaint by
invoking the powers of the trial magistrate under section 245 (2), Criminal
Piocedure Code55 on the ground that once they were discharged by the
High Court for the alleged offences, the complaint on the same facts and
allegations could not be maintainable in law. This contention was not
accepted by the trial magistrate. The matter again came up before the
Delhi High Court in revision. The court invoked the doctrine of prospec-
tive overruling and relying fully on the decision of the Supreme Court in
State of Kerala v. Alaserry Mohammed5G held that the order of discharge
passed in accordance with the law as laid down by the Division Bench in the
Rameshwar Chotte Lai case57 and which was not challenged by the respon-
dent Delhi Municipal Corporation by taking the matter to a higher court,
became final as between the parties to the case. The fact that in a
subsequent Full Bench decision the law as laid down in the Rameshwar
Chotte Lai case was overruled, could not justify the reopening of the case
which had been decided long before in 1972 and in accordance with the
law then holding the field. The court felt that such a prosecution should
not be allowed to be proceeded with.
Theoretically, an order of discharge is not an acquittal, and a second
prosecution on the same facts is not illegal. May be, in a case like the
present one, the second prosecution after three years from the order of
discharge may sound unreasonable and, therefore, unjust.
The implications of allowing free play to the application of the doctrine
of prospective overruling in the field of criminal law are not quite clear.
Mostly, the doctrine has been invoked in favour of the accused person.
Can it be invoked in favour of the prosecution also?
Addition of accused by sessions court after committal

An interesting question arose before the Supreme Court in Joginder

53
1979 Cri. L.J. 290 (Del.).
54
Supra note 51.
55
S. 245 (2), Cr.P.C. reads as follows:
Nothing in this Section shall be deemed to prevent a Magistrate from
discharging the accused at any previous stage of the case if, for reasons
to be recorded by such Magistrate, he considers the charge to be
groundless.
56 1978 Cri. L J . 925 ( S . C ) ,
57
Supra note 51.
 Vol. XV] Criminal Law and Procedure 257

Singh v. State of Punjab** as to whether the sessions court after due

committal of a case and during trial can add a person as accused without
committal proceedings in respect of such person, The question centres
around the scope and ambit of section 319, Criminal Procedure Code
under which a power has been conferred upon a criminal court to add
a person, not being the accused before it and against whom during the trial
evidence comes forth showing his involvement in the offence, as an accused
person and trying him along with those that are being tried. While
considering this matter the Supreme Court considered the historical back-
ground of section 319 including the corresponding (but inadequate) provi-
sions of the old Criminal Procedure Code of 1898 and the views and
recommendations of the Law Commission expressed in its 41st Report. In
the light of this background the court held that section 319 (1) applies to
all the courts including a sessions court and, therefore, such court would
have the power to add any person, not being an accused before it, but
against whom there appears during trial sufficient evidence indicating his
involvement in the offence, as an accused - and direct him to be tried
along with the other accused. The question * whether the sessions court
has power to do so without there being a committal order, was discussed
by the Supreme Court in the light of the provisions of sections 193 and 209
of the Criminal Procedure Code. It was pointed out that the commitment
both under sections 193 and 209 is of the 'case' and not of 'the accused'*
The court then observed ;

It is true that there cannot be a committal of the case without there

being an accused person before the court. . . but once the case in
respect of the offence qua those accused who are before the court
is committed then the cognizance "of the offence can be said to have
been taken properly by the sessions court and the bar of s.
193 would be out of the way and summoning of additional persons
who appear to be involved in the crime from the evidence led
during the trial, and directing them to stand their trial along with
those who had already been committed, must be regarded as
incidental to such cognizance and a part of the normal process
that follows it; otherwise the conferral of the power under section
319 (1) upon the sessions court would be rendered nugatory.59

A similar view has been taken by the High Court of Patna in Dwarika
Prasad v. State of Bihar*9a and Sidheshwar Prasad v. State of Bihar.5b6

58 1979 Cri. L.J. 333 ( S . C ) .

5» Id. at 337.
59a 1979 Cri. L.J. 618.
flfc 1979 Cri, UJ. 767.
258 Annual Survey of Indian Law [1979

Accused to be heard on the question of sentence

In trials before a court of session or in trials of warrant cases by

magistrates, the court, after finding the accused guilty, is required to hear
the convicted accused on the question of sentence and then to pass sentence
on him according to law.60
In Saddruddin v. Asstt. Collector Customs and Excise*1 the requirement
about the hearing of the accused on the question of sentence was not
complied with by the trial court. However, the court of the judicial com-
missioner, Goa, Daman and Diu relying on the Supreme Court decisions in
Santa Singh v. State of Punjab*2 Dagdu v. State of Maharashtra63 and
Tarlok Singh v. State of Punjab,™ held that such non-compliance with
section 235 (2), though something more than a mere irregu^rity, did not
necessarily entail a remand to the trial court in order to afford an opportu-
nity to the accused to have his say on the question of sentence. There is
no bar for the High Court to hear the accused on the question of sentence
which the trial court omitted to do. The court, therefore, preferred to
afford to the petitioner-accused an opportunity of submitting his views on
the question of sentence before finally disposing of the revision petition.
In Rajendra Prasad v. State ofU.P.,*5 the majority view expressed by
Krishna Iyer J. was inclined to prefer life imprisonment to death penalty
in as many cases of murder as possible. It was unmistakenly interested in
confining death penalty to as few cases as possible. To subserve this
objective they moulded, interpreted and used the various provisions of the
Criminal Procedure Code and other laws. The majority thought it
advisable to put a novel interpretation on section 235 (2) which says that
"if the accused is convicted the judge shall . . . hear the accused on the
question of sentence, and then pass sentence on him according to law."
This clear and simple provision does not speak of hearing the prosecution
on the question of sentence. However, this provision, according to trn
majority view, "should be construed to mean that where the court has to
choose one or the other sentence66 and if with a view to inflicting a
certain sentence, special reasons are required to be recorded,67 obviously
the State which is the prosecutor, must be called™ upon to state to the

6
° See ss. 235 (2) and 248 (2).
61
1979 Cri. L.J. 1265 (J.C.C. Goa).
62
A.I.R. 1976 S.C. 2386.
63
A.I.R. 1977 S.C 1579.
64
A.I.R. 1977 S.C. 1747.
65
1979 Cri. L.J. 792.'
66
For example, in case of murder the choice of punishment is between death and life
imprisonment, see s. 302, J.P.C.
67
For example, s. 354(3), Cr. P.C, requires the court to record special reasons tor.
the sentencejof death.
68
Emphasis added.
Vol. XV] Criminal Law and Procedure 259

court which sentence as prosecutor it would consider appropriate in the

facts and circumstances of the case." 69
It is true that the burden is on the prosecution to make out a case for
the extreme penalty of death. But can this be read into section 235 (2)?

Discharging the accused under section 227, Criminal Procedure Code

1 here have been several authorities of the High Courts as also of the
Supreme Court on the various aspects and grounds on which an accused
person can be discharged. However, section 227, Criminal Procedure Code
is a new section which empowers the sessions judge to pass an order of
discharge after the opening of the case by the prosecution and upon
perusal of the record of the case and hearing the submissions of the parties.
As there was then no direct decision of the Supreme Court on the inter-
pretation of section 227, the court thought it fit to give consideration to
this matter in its decision in Union of India v. Profulla Kumar.70 That case
involved an alleged conspiracy to commit offences under the Prevention of
Corruption Act, 1947. The special judge trying the case, after the
perusal of the case record (?\e., charge-sheet submitted by the police, the
statements of witnesses recorded by the police under section 161, Criminal
Procedure Code, and other documents produced by the police), reached
the conclusion that there was no sufficient ground for framing the charge
against the accused respondents. He accordingly discharged them under
section 227 of the Code, giving cogent reasons for the order of discharge.
The revision petition filed before the High Court by the appellant, Union
of India, against the order of discharge was also dismissed. Thereafter, the
matter came up before the Supreme Court in appeal by special leave. The
court, while dealing with this appeal, took note of the substantial and far-
reaching changes introduced by the enacting of the Code of Criminal
Procedure, 1973, to eliminate delays and to simplify the procedure, and
compared the relevant provisions of the Code of 1973 with those of the
earlier Code of 1898. The court then analysed section 227 of the Code
and considered its earlier decisions in State of Bihar v. Ramesh Singh,71
K.P. Raghavan v. M.H. Abbas,7a and Alamohan Das v. State of West
Bengal.73 The court, in the light of the above materials, felt that the
following principles emerge regarding the exercise of the power of discharg-
ing the accused under section 227 of the Code :

(1) That the Judge while considering the question of framing the
charges under section 227 of the Code has the undoubted power to

69 Supra note 65 at 818.

70
1979 Cri. L.J. 154.
7
* A.I.R. 1977 S.C. 2018.
72 A.I.R. 1967 S.C. 740.
73 A.I.R. 1970 S.C. 863.
260 Annual SurVey of Indian Lcte [1979
sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly explained
the Court will be fully justified m framirig a charge tend proceeding
with the trial.
(3) The test to determine a prima facie case would naturally depend
upon the facts of each case and it is difficult to lay down a rule of
universal application. By and large however if two views are equally
possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction under section 227 of the Code
the Judge which under the present Code is a senior and experienced
Court cannot act merely as a Post-Office or a mouth-piece of the
prosecution, but has to consider the broad probabilities of the case,
the total effect of the evidence and the documents produced before
the Court, any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving enquiry
into the pros and cons of the matter and weigh the evidence as if he
was conducting a trial.73"

Considering these principles and applying the same to the facts and
circumstances of the case, the court reached the conclusion that the order of
discharge passed by the trial court and confirmed by the High Court in
revision, was fully justified. Accordingly, the appeal of the Union of India
was dismissed.

Withdrawal from prosecution

According to section 321, Criminal Procedure Code, the public prosecutor

in charge of a case may, with the consent of the court, at any time before
the judgment is pronounced withdraw from the prosecution; and the effect
of such withdrawal would be the discharge or acquittal (depending upon
the stage of trial at which the withdrawal is made) of the accused person.
In Navnitdas v. Kundalikraou a question of some importance arose
before the Bombay High Court as to whether an application for
withdrawal from the prosecution under section 321 of the Code can be
opposed by a private complainant or by any other person. It was contended
by the accused that a private complainant has no locus standi in such matters.
7
-^ Supra note 70 at 1V7-158.
M 1979 Cri. L.J. 1242,
\&ol. XV] ^Cifiminul Law and Procedure 26l

The court found th it there was no direct authority, either way, on this
question. It referred to two decisions75 of the Supreme Court in which
the order permitting withdrawal from prosecution was challenged by a
private complainant. In these cases the challenge was entertained,
ftsard and decided on its own merits de hors the locus standi of the person
raising it but the question regarding locus standi of the private complainant
was not decided and left open. The Nagpur High Court 76 and the
Kerala High Court77 were inclined to accept the locus standi of private
person or complainant in these matters while the High Court of Patna 78
had expressed a view to the contrary. After considering these decisions
the court thought that in matters relating to administration of criminal
justice, irrespective of a private complainant's locus standi, the community
at large is also concerned and may in a given case have a vital locus
standi. It felt that "if one could go to the police or even to a magistrate
and file a criminal complaint, whether directly affected thereby or not, why
should one, on the ground of locus, be prevented or debarred from
challenging a withdrawal from prosecution only because one is a private
complainant?" Consequently, the objection based on locus standi was
rejected by the High Court.
The view taken by the Bombay High Court is welcome for more than
one reason. When the prosecutor decides to withdraw from the prosecution,
the intei ests of the accused and of the prosecution virtually merge with
each other and the adversary system so essential for reaching the truth
and attaining justice ceases to operate. The stand adopted by it would help
strengthening the adversary system. One would even suggest that even if
there is no challenge from a private person to the prosecutor's application
for withdrawal from the prosecution, the court should seek the assistance
from the Bar by appointing an advocate as amicus curiae to represent the
interests of the society at large.
In Abdur Rahaman v. Makimar Rahaman79 a question arose before the
Calcutta High Court as to whether the court of the committing magistrate
is competent to give consent to the withdrawal in respect of cases in which
the offences are exclusively triable by the court of session under section
321, Criminal Procedure Code. The court held that notwithstanding the
fact that the word 'tried' appearing in section 321 has been used in wider
context to include every kind of enquiry and trial, the committing
magistrate has no power to consent to withdrawal, as there is no inquiry
under the Code before the magistrate.

75 State of Bihar v. Ram Naresh, A.I.R. 1957 S.C. 389; M.N.S. Nair v. P.V. Balakrish-
nan, A.I.R. 1972 S.C. 496.
76 Satwarao Nagorao Hatkar v. Kanbarao Bhago Rao Hatkar, A.I.R. 1939 Nag. 334
77 Deputy Accountant General v. State, A.I.R. 1970 Ker. 158.
78 Guilt Bhagat v. Narain Singh, A.I.R. 1924 Pat. 283.
79 1979 Cri. L. J. 1471.
 262 Annual Survey of Indian Law [ 1979

V APPEALS

Procedural restraint on summary dismissal of appeals

In Sita Ram v. State of U. P» the appellants were convicted of

murder by the High Court after setting aside the order of acquittal
passed by the sessions judge. They preferred an appeal to the Supreme
Court under section 2 (a) of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970 (hereafter referred to as Enlargement
Act for the purposes of discussion under this head). It was also stated
that the appeal was under section 379 of the Criminal Procedure Code
read withsecUon 1 of the Enlargement Act. At the preliminary heanng it was
contended by the appellants that the provisions of order 21, rule 15 (1) (c)
of the Supreme Court Rules empowering the court to dismiss the appeal
summarily was ultra vires the Enlargement Act as being inconsistent with
its provisions, and that the power to frame rules under article 145 of the
Constitution cannot be extended to annul the rights conferred by the
Enlargement Act. It was further contended that an appeal under the
Enlargement Act (or one under section 379 of the Code) cannot be
dismissed summarily without calling for the records, ordering notice to
the state and without giving reasons. The questions raised were
considered by the Full Bench of the Supreme Court. Considering the
provisions of article 134, the Enlargement Act and section 379 of the
Criminal Procedure Code, the appellants were held to have an undeniable
right of appeal. But the question before the court was-what are the
necessary components of a hearing when such right of appeal is exercised?
The court (Krishna Iyer J. delivering the majority judgment) after referring
to section 384 of the Code observed:

A casual perusal discloses that section 384 is an omnibus provision

embracing all appeals, big and small, grave and goofy, involving a
petty fine or inflicting for the first time, a hanging sentence. And
regardless of the stakes, the appellate court is given the pervasive
power to dismiss the appeal summarily, and worse, even without
calling for the record of the case and without recording its reasons
if the Court is higher than the Court of Session. At first blush a
blanket power to dismiss summarily, ex parte, sans record of the
case, sans record of reasons, even where an acquitted accused is
sentenced to death for the first time by the High Court, is neither
human law nor human justice if our jurisprudence is sensitized by
the humanity of the Preamble to the Constitution or responsive to
the vibrant commitment to civilized values.81

so 1979 Cri. L.J. 659.

M Id at 665.
Vol. XV] Criminal Law and Procedure 263

The court also expressed the view that nothing which would render
this right (of appeal to the Supreme Court) illusory or its fortune chancy
can square with the mandate of article 21 of the Constitution as interpreted
in the Maneka Gandhi case.
The court, after examining in detail the relevant provisions of the
Constitution and of the Criminal Procedure Code, upheld the vires of
order 21, rule 15 (1) (c) of the Supreme Court Rules and section 384 of the
Criminal Proceducre Code, but held that in their application both the
provisions would be restricted by certain criteria as a permissible exercise
in constitutionalism.

In conclusion the court observed as follows:810

Order 21, R. 15 (1) (c) in action does not mean that all appeals falling
within its fold shall be routinely disposed of, as far as possible, on
a preliminary h e a r i n g . . . . The rule, in cases of appeals under Article
134 (1) (a) and (b) and section 2 (a) (of the Enlargement Act) is
notice, records and reasons, but the exception is preliminary hearing
on all such materials as may be placed by the appellant and brief
grounds for dismissal. This exceptional category is where, in all
conscience there is no point at all. In cases of real doubt the
benefit of doubt goes to the appellant and notice goes to the
adversary—even if the chances of allowance of appeal be not bright.
We think it proper to suggest that with a view to invest clarity and
avoid ambiguity, C 2 1 , R.15 (1) (c) may be suitably modified in
conformity with this ruling.

One may feel that the decision has not made any substantial change in
the import of section 384 or order 21, rule 15 (1) (c). The discretion to
call for the record was there and continues even after this decision; as
regards recording of reasons the Supreme Court had repeatedly urged
that the High Court should record reasons while dismissing any appeal
summarily. As regards notice to the other party of the preliminary hearing,
even the decision in the Sita Ram case is not rigid about it and prefers to
leave it to the discretion of the court. With all this, it must be said that the
stress given in Sitaram's case on enlarging the fullness of the preliminary
hearing of appeals in respect of very serious offences, will help in improving
the quality of justice.

Special leave to appeal against acquittal

Twelve applications under section 378 (4), Criminal Procedure Code for
grant of special leave to appeal against the orders of acquittal passed in
twelve separate cases came up before the Delhi High Court in Delhi Munici-

»lfl Id. at 672-73,

264 Annual Survey of Indian Le£w [J 979
pality v. Madan Lal.*\In all these prosecutions under the Prevention of Food
Adulteration Act, the accused were acquitted as the food inspector had
taken for analysis a much shorter quantity than that prescribed by the rule.
These acquittals were based on the decision of the Supreme Court in Rajal
Das Pamnani v. State of Maharashtra}* However, the view taken
in this decision was later overruled by a larger Bench of the Supreme
Court in State of Kerala v. Alassery Mohammed.u The applicant, Delhi
Municipality, wanted to take advantage of this recent decision of the
Supreme Court in State of Kerala while seeking special leave to appeal
against the orders of acquittal which were based on the earlier decision
of the Supreme Court in the Rajal Das Pamnani case.
While rejecting application for special leave to appeal, the court
observed:

Whenever the highest court of the land unsettles a settled view of the
law, considerations of hardship and injustice loom large on the judi-
cial horizon. Courts then resort to such doctrines as prospective
overruling to avoid difficulties....Unsettling the settled cases and
converting acquittals into convictions will hardly be conducive to
justice, much though we would wish to put down the social evil of
adulteration with a strong hand.85

VI MAINTENANCE PROCEEDINGS

Strictly speaking, provisions for providing maintenance to dependent

wives, children and parents do not fall within the ambit of criminal
proceduie. However, in the interests of social justice, sections 125-127,
Criminal Procedure Code provide for a speedy and inexpensive remedy to
dependent wives, children and parents for obtaining maintenance. During
the year under survey important decisions pertaining to this area have
been reported.
In the landmark decision in Bai Tahirav. Ali Hussain Fissalli^ the
Supreme Court in no uncertain terms has held that no husband can claim
under section 127 (3) (b) of the Code an absolution from his obligation
under section 195, towards a divorced wife "except on proof of payment
of sum stipulated by customary or personal law whose quantum is more
or less sufficient to do duty for maintenance allowance".87 The court made
it clear that "the payment of illusory amounts or personal law requirement

82 1979 Cri. L.J. 426.

83 1975 Cri. L.J. 254.
84 Supranote 56.
85 Supra note 82 at 428.
se 1979 Cri. L J . 151.
87 Id. at 154 (Emphasis added).
 Vol. XV] Criminal Law and Procedure 265

will be considered in reduction of maintenance rate but cannot annihilate

that rate unless it is a reasonable substitute." 88
Though this decision of the Supreme Court is progressive and gives a
helping hand to divorced wives having no adequate provision for main-
tenance, some orthodox Muslims felt that the decision was making an
inroad into their customary personal law and thereby it was an encroach-
ment upon their freedom of religion. They protested against this decision
and sought the abrogation of the effect of this decision by suitable legis-
lation. The decision in the prevailing conditions may have far reaching
consequences. One would only hope that the needy divorced wives are
not deprived of the legitimate succour provided by the socially responsive
judicial process.
In Ramesh Chander v. Veena Kaushal,89 the Supreme Court decided two
significantly important points. Firstly, it held that though a final deter-
mination of a civil right by a civil court must prevail against a like de-
cision by a criminal court, yet this rule is not applicable to the interim
maintenance order passed by the civil court during the pendency of the
maintenance proceedings under section 125 of the Code. The court held
that the magistrate, despite the interim order of the civil court, can award
a higher maintenance to the wife and children under section 125. Secondly,
the court in the above said case liberally interpreted the provision regar-
ding the maximum quantum of maintenance awardable under section 125.
The court held that the words "in the whole" occurring in section 125 must
be construed as meaning 'taking all items of maintenance together' and 'not
all the members of the family put together1. This ensures a reasonable
amount of up to Rs. 500 p.m. to each claimant (and not just Rs. 500 p.m.to
all the claimants taken together).
This decision of the Supreme Court is a testimony of the fact that while
construing section 125 the court did not consider the section as just
"petrified print" but considered it as having "vibrant words with social
functions to fulfil".

ss ibid.
89 J979 Cri. L.J. 3.